Editorial: Divide still exists between law, modern technology

In a world in which email has become the substitute for conversations, there’s no surprise more and more official business is being conducted not in words but in bytes and electronic attachments.

So why do people in power seem shocked that the crusade for transparency is not willing to allow that to continue?

Like many laws that were drafted long before the proliferation of electronic communication, a lot of state open records rules don’t specifically address things such as email. A few places have relied on the standard provision that government transparency applies to “all” records, regardless of what form they take.

A series of recent decisions is bringing some clarity to that understanding in Illinois, but don’t expect it to come without a fight.

Elected officials are savvy enough to know what they transmit on official accounts is subject to review. A few, some simply trying to circumvent the law, have moved to using alternate email accounts — think gmail, for example — and argued those words are not subject to the state’s Freedom of Information Act because they are transmitted privately over personal accounts.

Think again.

A binding opinion by Attorney General Lisa Madigan’s office this month stipulated Chicago police officers’ emails about the shooting of a teenager fall under transparency laws even if they don’t have that official “@chicagopolice.org” domain.

An open records request sought emails in which the October 2014 shooting of McDonald, an unarmed black youth, by a white police officer was discussed. News network CNN challenged what was turned over on the grounds authorities did not search personal emails of 12 officers for relevant records.

The state determined the omission was improper.

In late May, a judge ruled in a separate case that Chicago Mayor Rahm Emanuel could not exempt emails and texts about city business just because they were sent from a private device.

There have been threats of court fights over both decisions.

Challengers argue it is a violation of the right to privacy to force disclosure of such communications sent through private devices. Others point to a 2013 appeals court decision in another case that questioned whether a city council member was acting as a part of a public body if that agency was not convened for business and not under the council’s control.

The reality of communication these days is that business and personal lives are intertwined, sometimes barely distinguishable. It’s one thing to send an email over a personal account to make dinner plans with a spouse, but it’s all together different to use that same personal email to take care of official responsibilities.

There is no gray area there. One is personal; one is not.

As an opinion by the attorney general’s office rightly explained, it would be like an elected official putting public documents “in a file at his daughter’s house and then claiming that they are under her control.”

In other words, it’s what’s discussed that makes the difference — not how it is conveyed.

That’s an important step in the right direction for openness in government.